HISTORY AND ORIGIN OF THE LAW
HISTORY OF THE LAW
- Talking about the history of Muslim Personal Law it was seen that during the colonial era, the British Courts would consult Hidayah, written by Mirghayani, a Hanafi Scholar, and then have it translated into English by Hamilton.
- This choice of Hanafi Law was rooted in the fact that the ruling class before the British were the Mughals, who were Hanafis.
- In order to make the masses most adaptable to their rule, the British followed the procedure that followed English Law and the substantive part was based on Hidayah, it later came to be known as Anglo-Mohammedan Law, now called as Muslim Personal Law (Shariat law).
- The Shariat law has not remained static over centuries, since the period when the Prophet was alive, the legislation mentioned in the Quran kept developing in response to practical problems faced by the Prophet and his community, so much so that even after his death too, the presence of different schools of Sharia and the way different modern Islamic countries have applied it to their legal domain.
- Modern time Islamic Nation States have responded to the needs of modernity by embracing the Shariat in ways suiting their social and political needs consequently, there are four different schools of Islamic law, each of which interprets the writings in the Quran in different ways and consists of varying rules and regulations for the Islamic community all over the world.
- The four schools of Islamic law are (Hanafiyya, Malikiyya, Shafiyya and Hanabaliyya) which were developed in four different centuries.
ORIGIN OF THE LAW
- Before Islam was introduced as a religion to Arabia, a tribal social structure was prevalent.
- The tribe as a whole duty was to determine what law was and the rules were unwritten. These laws made by the tribe were modified with time, as and when society felt the need for change.
- In the seventh century, the Muslim community was established in Medina and soon started spreading to the surrounding regions. The establishment of Islam, the will of God, as transmitted in the Quran as the revelations of Muhammad, came to supersede every tribal custom which was created prior.
- The writings in the Quran along with unwritten customs, are also known as the Shariat that is what governs the Islamic society. In addition to this, the Shariat is also based on the Hadith (actions and words of the Prophet as recorded by his companions), originally, they were very broad and general solutions to practical problems in society but later on they have become more specific.
- The Act came into force on 7th October, 1937
PREAMBLE OF THE ACT
- This is an Act to make provision for the application of the Muslim Personal Law (Shariat) to Muslims. It is expedient to make provision for the application of the Muslim Personal Law (Shariat) to Muslims.
Short title and extent as mentioned
- (1) This Act may very well be called The Muslim Personal Law (Shariat) Application Act, 1937. (2) It extends to the whole of India.
- All the Muslims living in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937.
- The Shariat can be simply explained as being the provisions in the Quran as well as the teachings and practices of Prophet Mohammad.
- Accordingly we can see that Article 14 of the Indian Constitution grants “equal protection of law” to all its citizens, but when it comes to personal issues (marriage, divorce, inheritance, custody of children, etc), Muslims in India are governed by their very own laws, that is, the Muslim Personal Law which came into force in 1937, and that the State shall not interfere.
APPLICATION OF THE LAW
“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula (type of divorce) and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
These laws mentioned above will not be applicable to Muslims who married under the Special Marriage Act, 1954.
• Explanation on Section 2 of the Act:
Section 2 of the Shariat Act provides that in the case where both the parties are Muslims the ultimate rule for decision shall lie under the Muslim Law, if the case of the parties involves any of the following matters:
• Intestate succession (i.e. inheritance),
• Special property of the females,
• Marriage (including all incidents of marriage),
• The Dissolution of Marriage (including all kinds of divorce),
• Gift: Any type of property can be given as gift,
• Trust and trust properties, and
• Consequently as seen above, if both the parties to a case are Muslims, the Courts shall apply only the Muslim personal law and nothing else in the case.
• It is to be noted that a custom or usage contrary to Muslim law cannot be applied for such cases thereon. The word shall means it is mandatory, meaning thereby that the Courts are not only empowered but also bound to administer only Muslim personal law in the situations mentioned above.
In the cases handling Adoption, Wills and Legacies, the Courts have consequently no authority to apply Muslim law under Section 2 of the Act (except in the exception clause mentioned herein under), as tese subjects are not included in the said Section. Although, we may take note that Section 3 of the Shariat Act mentions that Courts may apply the rules of Muslim law in cases of Adoption, Will and Legacies provided that a Muslim expressly declares that he wants to be governed by Muslim law also in respect of these matters in addition to the aforesaid (bullets mentioned above) ten matters.
• Section 5 of the Shariat Act of 1937 concerns Muslim women seeking divorce. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939.
• Power to make a declaration
(1) Any person who satisfies the prescribed authority
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the Indian ContractAct, 1872 (9 of 1872), and
(c) that if he is a resident of [the territories to which this Act extends to], he may then by the mode of declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of [the provisions of this section], and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
(2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the person desiring to make the same may appeal to such office as the State Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.
• Explanation of Section 3
(1) Any person who satisfies the prescribed authority (as stated above) may by only a declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein, adoption, wills and legacies were also specified.
• It should made absolutely clear that since adoption, wills and legacies are not mentioned under Section 2, therefore the Courts will not apply Muslim law to all the Muslims in these three matters unless they desire to be governed by Muslim law also in these matters. This desire must only be expressed through a declaration to that effect.
• It is to be noted that the effect of such a declaration is that not only the declarant but also his children and all the descendants shall be governed by Muslim law in these three additional subjects.
• Consequently it must noted that if there is no such declaration by a Muslim, the Courts are not bound to apply Muslim personal law on these matters and they may freely apply customs and usages or the local enactments, if any.
• Rule-making power
(1) The State Government is allowed to make rules to carry into effect the purposes of this Act.
(2) Especially in particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:
(a) For the duty of prescribing the authority before whom and also for the form in which declaration under this Act shall be made;
(b) For the duty of prescribing the fees to be paid for the filing of declarations and also for the attendance at private residences of any person in the discharge of his duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.
(3) Rules made under the provisions held in this section shall be published, in the Official Gazette and shall thereupon have effect as if enacted in this Act.
(4) Every rule henceforth made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.
INCORPORATION IN STATES
- This law extends to the whole of India , all the Muslims living in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937
- It can be seen in Muslim-majority countries have incorporated shariat law at some level in their legal framework and so on.
- Although these Muslim personal laws are not applicable in the State of Goa, where the Goa Civil Code is applicable for all persons irrespective of religion.
- These laws are also not applicable to Muslims who married under the Special Marriage Act, 1954.
- Section 6 of the Shariat Act repeals certain provisions of those earlier enactments which gave authority to the Courts to apply Muslim law before the commencement of the Shariat Act. Take for instance, Section 26 of Bombay Regulation Act, 1827, Section 16 of the Madras Civil Courts Act, 1873, Section 3 of Oudh Law Act, 1876, Section 5 of Punjab Laws Act, 1872 and the Central Provinces Laws Act, 1875, have been actually repealed and are now not in force any more.
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